PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 509. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES

The Texas Health and Human Services Commission (HHSC) adopts new rules in Texas Administrative Code (TAC), Title 26, Part 1, Chapter 509, concerning Freestanding Emergency Medical Care Facilities. The new chapter consists of §§509.1, 509.2, 509.21 - 509.30, 509.41 - 509.66, 509.81 - 509.86, and 509.101 - 509.108.

New §§509.2, 509.24, 509.26, 509.48, 509.51 - 509.54, 509.61, 509.62, and 509.81 - 509.83 are adopted with changes to the proposed text as published in the July 14, 2023, issue of the Texas Register (48 TexReg 3801). These rules will be republished.

New §§509.1, 509.21 - 509.23, 509.25, 509.27 - 509.30, 509.41 - 509.47, 509.49, 509.50, 509.55 - 509.60, 509.63 - 509.66, 509.84 - 509.86, and 509.101 - 509.108 are adopted without changes to the proposed text as published in the July 14, 2023, issue of the Texas Register (48 TexReg 3801). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The new sections are necessary to comply with House Bill (H.B.) 2041 and H.B. 1112, 86th Legislature, Regular Session, 2019, which amended Texas Health and Safety Code (HSC), Chapter 254, relating to the regulation of Freestanding Emergency Medical Care Facilities. H.B. 2041 requires freestanding emergency medical care (FEMC) facilities to comply with updated advertising requirements, which includes disclosure of facility fees and clarification of health benefit plans that are accepted by the facility, and it requires FEMC facilities to provide a disclosure statement to patients. H.B. 2041 requires an FEMC facility that closes or whose license is expired, suspended, or revoked to remove their signs from the facility. H.B. 1112 similarly requires a closed FEMC facility or an FEMC facility whose license is expired, suspended, or revoked to remove their signage. This proposal also complies with Senate Bill (S.B.) 425, 84th Legislature, Regular Session, 2015, which amended HSC Chapter 254 to require an FEMC facility to post a notice regarding facility fees and provide other consumer information to patients.

The new sections also revise sections in the subchapters on Inspection and Investigation Procedures and Enforcement to outline facility documentation expectations to increase consistency across facility rule sets, update language to reflect the transition to HHSC and the relocation of rules from 25 TAC to 26 TAC, and correct outdated references and citations.

To implement this change, rules in 25 TAC Chapter 131, Freestanding Emergency Medical Care Facilities, are being repealed and new rules adopted in 26 TAC Chapter 509, Freestanding Emergency Medical Care Facilities. The repeal of 25 TAC Chapter 131 is adopted elsewhere in this issue of the Texas Register.

COMMENTS

The 31-day comment period ended August 14, 2023.

During this period, HHSC received comments regarding the proposed rules from seven commenters representing the Texas Academy of Physician Assistants (TAPA), Texas Association of Freestanding Emergency Centers (TAFEC), Texas Association of Health Plans (TAHP), Texas Medical Association (TMA), Texas Nurses Association (TNA), Texas Nurse Practitioners (TNP), and Texas Society of Anesthesiologists (TSA). A summary of comments relating to the rules and HHSC's responses follow.

Comment: TMA appreciated the changes in these newly proposed rules that incorporated the comments TMA submitted to HHSC when this project was previously posted in the Texas Register for comment in January 2021.

Response: HHSC acknowledges this comment.

Comment: TAHP expressed support for rules implementing consumer protections regarding FEMC facilities.

Response: HHSC acknowledges this comment.

Comment: TAFEC said they appreciate HHSC's efforts to update and refresh the FEMC rules by repealing 25 TAC Chapter 131 and replacing the chapter with 26 TAC Chapter 509.

Response: HHSC acknowledges this comment.

Comment: TAFEC expressed concern with the definition of "premises" at §509.2(28), renumbered to §509.2(29), because FEMC facilities are responsible for providing patient care to any patient on their property, which may include areas outside of a building. TAFEC cited examples where an FEMC facility may deliver care in the parking lot or a patient's vehicle, including providing emergency care to deliver an infant, tending to an injury that would be dangerous to move a patient, or providing care during the COVID-19 pandemic to avoid people congregating in the building. TAFEC proposed amending the "premises" definition to a "building, parking lot and other structures (temporary or permanent) on the Owner's property where emergency care is delivered."

Response: HHSC declines to revise §509.2(28), renumbered to §509.2(29), because services cannot be provided in a parking lot, and other temporary or permanent structures, including mobile, transportable, and relocatable units, are governed under 25 TAC Chapter 131, Subchapters F and G.

Comment: TMA recommended HHSC clarify the definition of "violation" at §509.2(36), renumbered to §509.2(37), because the phrase "another statute" in the definition is too broad. TMA expressed concern with HHSC considering a failure to comply with any Texas statute as a violation under the chapter. TMA recommended removing this language or adding language to clarify it is another statute "relating to the licensure or operation of a freestanding emergency medical care facility."

Response: HHSC revises §509.2(36), renumbered to §509.2(37), by adding the suggested language.

Comment: TAHP expressed support for §509.21(c)(4), which limits an FEMC facility's license to emergency care services and procedures related to providing emergency care. TAHP referenced the definition for an FEMC facility in HSC Chapter 254, which is the governing statute for FEMC facilities, and stated the definition clearly defines an FEMC as a facility structurally separate and distinct from a hospital that provides emergency care. TAHP also stated that while some FEMC facilities have made attempts to expand their authority legislatively, those attempts have failed, and the proposed rules correctly clarify FEMC facilities may not legally provide non-emergency services.

Response: HHSC acknowledges this comment.

Comment: TAHP recommended HSHC add language to FEMC initial and renewal applications to require an FEMC facility to state whether the facility is compliant with the requirements at HSC §§254.155, 254.156, and 254.157. TAHP noted instances of FEMC facilities appearing to be in violation of H.B. 2041 and cited an HHSC report that 15 facilities have been subject to an administrative penalty for violations of these consumer protection requirements since September 2021. TAHP stated that it is critical for HHSC to enforce these requirements because violations can lead to devastating financial consequences for Texans. TAHP also stated reminding FEMC facilities on application forms about these requirements would make FEMC facilities more likely to comply, which would reduce enforcement actions and lead to fewer unexpected bills for patients.

Response: HHSC declines to revise §509.24 and §509.25 because §509.41(l) and (m) address the requirements at HSC §254.157, §509.60(h) addresses the requirements at HSC §254.155, and §509.60(i) addresses the requirements at HSC §254.156.

Comment: TMA recommended HHSC change "shall" to "may" in §509.24(g) regarding HHSC issuing an initial license. TMA expressed concern with the mandatory language prohibiting HHSC from exercising discretion when determining whether to issue a license, including if there were "red flags" disclosed in the application requirements under §509.24(c)(8)-(9).

Response: HHSC declines to revise §509.24(g) because HHSC is required by HSC §254.053(e) to issue a license if HHSC determines the applicant and facility meet the requirements under HSC Chapter 254 and this chapter.

Comment: TMA recommended HHSC change "shall" to "may" in §509.25(c) regarding HHSC issuing a renewal license to prevent an unintended interpretation and application of this subsection.

Response: HHSC declines to revise §509.25(c) because HHSC is required by HSC §254.053(e) to issue a license if HHSC determines the applicant and the facility meets the requirements under HSC Chapter 254 and this chapter.

Comment: TAFEC expressed concern with the inactive status timelines in §509.26, which requires a facility that does not provide services under its license for more than five calendar days to notify HHSC and be placed on inactive status and clarifies if the inactive status lasts longer than 60 days, HHSC will consider the facility closed and the facility must surrender its license. TAFEC stated this timeframe is too abbreviated to capture the facility's actual status and noted a facility could be closed for a variety of reasons, which may not allow the facility to promptly fix the issue.

TAFEC proposed amending §509.26 to require a facility to notify HHSC if it does not provide services for 14 consecutive days or 30 days in a rolling 60-day period. TAFEC also suggested requiring the notice the facility provides HHSC to include the last date the facility was open, reason for the disruption, and anticipated reopening date. TAFEC also proposed language clarifying if the reason for the disruption was unavoidable or an "act of God" and the anticipated reopening date is fewer than 60 days away, the facility's status will not change. TAFEC recommended clarifying if the facility fails to reinitiate operations by the anticipated date given to HHSC, the facility will file an updated notice no later than the original anticipated date of reopening. TAFEC further recommended clarifying if the facility has an anticipated reopening date that is more than 60 days away, but less than 120 days, or the facility fails to file the required notice, HHSC will place the facility on inactive status. TAFEC also proposed language clarifying if the facility has not provided services in more than 120 days, HHSC will require the facility to close and terminate its license.

Response: HHSC revises §509.26(a) by replacing "does not provide services under its license" with "is not staffed and open" to clarify a facility could be operational but not providing services to patients because there are no patients at the facility.

HHSC declines to revise the timeframe in §509.26(a) because the five-calendar-day timeframe is enough time to address most emergency situations. HHSC notes if the facility is not operational for more than five calendar days and its license is placed on inactive status, the facility may reactivate its license under §509.26(a)(4). HHSC also notes this rule is not intended to apply to statewide emergency events, but rather localized emergencies.

Comment: TMA recommended HHSC amend §509.29(d)(1) and (3) to add language about HHSC declining to issue a license to reflect a completed application may contain information that disqualifies an applicant.

Response: HHSC declines to revise §509.29(d)(1) and (3) because the additional language is unnecessary since HHSC will not issue a license if a facility does not meet licensing requirements.

Comment: While TAFEC expressed appreciation for the change from a one-year license term to a two-year term so their members must only apply for licensure renewal once every two years, TAFEC expressed concern with the doubled initial and renewal licensing fees and stated the fees could be a barrier to entry or expansion for FEMC facility owners and operators. TAFEC noted facilities experience challenges with receiving reimbursement from third-party payers because they will not contract with FEMC facilities and frequently challenge their out-of-network payments. TAFEC stated that while the federal No Surprises Act and state surprise billing laws have provided FEMC facilities with additional resources to seek reimbursement from commercial payors, these laws have also increased costs for the informal dispute resolution process. TAFEC also noted that since the federal COVID-19 public health emergency ended, FEMC facilities are no longer allowed to participate and receive payments through the Medicare program. TAFEC further noted the FEMC facility license fee is higher than similar facilities, including ambulatory surgical centers and hospitals.

Response: HHSC declines to revise §509.30. HSC §254.102 grants HHSC the authority to set fees reasonable and necessary to defray the costs of administering the chapter. HHSC notes the fee amount per year described in §509.30 did not change from the per year amount in repealed 25 TAC §131.30, which was $7,410 for an initial license and $3,035 for a renewal license. The fees in §509.30, which are $14,820 for an initial license and $6,070 for a renewal license, reflect the two-year licensure period. Section 509.30 aligns with HSC §254.053(f), which requires the facility pay the license fee upon renewal and states the term for a license issued under HSC Chapter 254 is two years. The licensure fee amount in §509.30 covers the cost of HHSC's ongoing oversight and regulation for each year of the license term and is reasonable and necessary to defray the cost of administering HSC Chapter 254.

Comment: TMA recommended HHSC remove the word "control" from §509.41(a) regarding an FEMC facility's governing body's responsibilities. TMA stated this word could have negative implications regarding the facility's medical staff's ability to exercise professional medical judgement relating to a patient's health care needs without financial or other outside pressure.

Response: HHSC declines to revise §509.41(a) because the language is consistent with the "governing body" definition at §509.2(15), the equivalent repealed rule at 25 TAC §131.41(a), and other HHSC acute health care facility rules, including the general and special hospital rule at 25 TAC §133.41(f)(1).

Comment: TMA recommended HHSC amend §509.41(b) to add language stating the governing body shall develop the policies and procedures with the advice of medical staff members.

Response: HHSC declines to revise §509.41(b) because the agency's role is not to prescribe individual business models for FEMC facilities, and a facility may determine the best process for the facility under this subsection, provided the facility meets statutory and rule requirements.

Comment: TMA recommended HHSC amend §509.41(h) to add language stating the governing body must exercise its duties to appoint and reappoint medical staff and assign or curtail medical privileges after considering input from the facility's medical staff.

Response: HHSC declines to revise §509.41(h) because the agency's role is not to prescribe individual business models for FEMC facilities, and a facility may determine the best process for the facility under this subsection, provided the facility meets statutory and rule requirements.

Comment: TMA expressed support for HHSC including basic credentialing requirements and recommended HHSC amend §509.45(d)(5) to only require a physician who is not board certified or board eligible in emergency medicine to have a current certification in advanced cardiac life support (ACLS), pediatric advanced life support (PALS), and advanced trauma life support (ATLS). TMA stated this amendment would exempt physicians who are currently board certified in emergency medicine from being required to have current ACLS, PALS, and ATLS certifications, because TMA stated being board certified "covers these areas."

Response: HHSC declines to revise §509.45(d)(5), because more than one board provides certification in emergency medicine, and at least one of those boards does not require ACLS or PALS. Further, due to regular updates, the ACLS renewal cycle is two years while board certification is at least five years and may be up to 10 years. HHSC notes that for health and safety reasons, it is important for all members of the medical team to have up-to-date training.

Comment: TMA recommended HHSC amend §509.45(d)(5) to include "board eligible" physicians because TMA stated these physicians are highly trained and have graduated from an accredited emergency medicine program.

Response: HHSC declines to revise §509.45(d)(5) because §509.45(d)(5) does not exclude physicians without board certification to be privileged as a physician at an FEMC facility, provided they meet the requirements under this paragraph.

Comment: TSA recommended amending §509.48(e) to add the American Academy of Anesthesiologist Assistants to the list of association guidelines a facility must consider when the facility develops the written anesthesia service policies and standards under this subsection.

Response: HHSC declines to revise §509.48(e) because the requested association guidelines fall under the standards applicable to licensed professionals qualified to administer anesthesia, which FEMC facility medical staff are required to consider when developing the written anesthesia service policies and practice guidelines.

Comment: TSA expressed concern with §509.48(f) allowing a certified registered nurse anesthetist (CRNA) to order anesthesia and sedation for delivery by a registered nurse (RN). TSA cited Texas Occupations Code §157.001, which allows a physician to delegate certain medical acts, and stated there are no provisions in Texas Occupations Code Chapter 301, the Texas Medical Board rules, and the Texas Board of Nursing rules allowing an advance practice registered nurse (APRN), including a CRNA, to delegate performing a medical act to an RN. TSA recommended removing the language in §509.48(f) allowing a CRNA to order an RN to administer topical anesthesia, local anesthesia, minimal sedation, and moderate sedation.

TMA expressed similar concerns with §509.48(f), stating the subsection is inconsistent with scope of practice limitations and requirements in Texas law because a CRNA may not delegate anesthesia administration to an RN. TMA also suggested removing language in §509.48(f) allowing an RN to administer anesthesia.

Response: HHSC revises §509.48(f) in response to these comments by clarifying a qualified RN who is not a CRNA may administer certain anesthesia or sedation on the order of a physician, podiatrist, dentist, or other practitioner practicing within the scope of their license and education and removing language allowing a CRNA to order an RN to administer anesthesia.

HHSC declines to remove the language allowing an RN to administer anesthesia because the language requires the RN to perform the acts in accordance with all applicable Texas Board of Nursing rules, policies, directives, and guidelines.

Comment: TSA recommended amending §509.48(i) to remove "RN" from the list of practitioners who can perform a post-anesthesia evaluation. TSA stated the Conditions of Participation for rural emergency hospitals (REHs) do not include an RN as a qualified anesthesia practitioner who must evaluate a patient for proper anesthesia recovery.

Response: HHSC declines to revise §509.48(i) because the federal Conditions of Participation for REHs do not apply to FEMC facilities.

Comment: TNA and TNP expressed concern with §509.51(d) only allowing physicians to read, date, sign, and authenticate examination reports and stated the subsection makes the FEMC facility rules more restrictive than those for hospitals, which TNA and TNP stated usually have more access to physicians. TNA and TNP also stated Texas Occupations Code §601.252 expressly allows nurses to provide radiological services and the Texas Board of Nursing rules at 22 TAC §217.4 requires nurses to register before performing radiological services. TNA and TNP noted there is a national certifying body that credentials radiology nurses. TNA and TNP recommended HHSC amend §509.51(d) to remove the restriction or clarify a physician may delegate radiological services and assessments as necessary.

Response: HHSC revises §509.51 by adding "or other practitioner within the scope of their license and education" to subsection (d).

Comment: TAPA expressed concern with physician assistants (PAs) not being listed as a provider allowed to order radiology services in §509.51(g)(1). TAPA noted PAs may be included in the term "other authorized practitioner," but recommended expressly including PAs under this paragraph to avoid confusion in FEMC facilities.

TMA also expressed concern with the language in §509.51(g)(1) regarding an APRN's scope of practice, which does not include ordering radiology services, and stated it is not clear to whom "authorized practitioner" refers. TMA recommended amending §509.51(g)(1) to remove the reference to "authorized practitioner" and clarify an APRN can only order radiology services under the delegation and supervision of a physician.

Response: HHSC revises §509.51(g)(1) in response to these comments to require radiologic services to be performed only on the order of a physician, podiatrist, dentist, or other practitioner who is practicing within the scope of their license and education.

Comment: TAPA expressed concern with §509.51(g)(2) limiting the use of radioactive sources to physicians. TAPA stated PAs are trained and qualified to use radioactive sources and to provide radiology services. TAPA also noted there are no similar restrictions in existing general and special hospital rules and requested HHSC align the FEMC rules with the hospital rules to allow PAs to use radioactive sources.

TNA and TNP also expressed concern with §509.51(g)(2) limiting the use of radioactive sources to physicians. TNA and TNP stated Texas Occupations Code §601.252 expressly allows nurses to provide radiological services and the Texas Board of Nursing rules at 22 TAC §217.4 requires nurses to register before performing radiological services. TNA and TNP recommended either removing the restriction on nurses from §509.51(g)(2) or clarifying physicians may delegate radiological services and assessments as necessary.

Response: HHSC declines to revise §509.51(g)(2) because radioactive sources are specific to nuclear medicine and do not include all radiologic services.

Comment: TMA expressed concern with the language in §509.52(f) allowing an "advanced practice registered nurse or other authorized practitioner" to order respiratory services because "prescription of therapeutic or corrective measures" is specifically excluded from the definitions of nursing in the Nursing Practice Act. TMA also stated the meaning of "authorized practitioner" is unclear, and Texas Occupations Code Chapter 604, which governs respiratory care practitioners, only mentions acts being performed by physicians.

Response: HHSC revises §509.52(f) by removing "advance practice registered nurse" and clarifying that the "other practitioner" must be "practicing within the scope of their license."

Comment: TMA recommended replacing the term "practitioners" in §509.53(c) with "dentist or podiatrist" because Texas Occupations Code only refers to a physician, podiatrist, or dentist performing surgery to the extent within the scope of their respective licenses. TMA noted it was unclear who "practitioner" would include because the chapter definition excludes physicians, podiatrists, and dentists.

Response: HHSC revises §509.53(c) by adding the terms "podiatrist" and "dentist" and clarifying that the "other practitioner" is someone other than a physician, podiatrist, or dentist who is practicing within the scope of their license and education.

Comment: TMA recommended HHSC amend §509.53(j) to replace "physician or practitioner" with "physician, dentist, or podiatrist."

Response: HHSC revises §509.53(j) by adding the terms "podiatrist" and "dentist" and clarifying that the "other practitioner" is someone other than a physician, podiatrist, or dentist who is practicing within the scope of their license and education.

Comment: TAPA expressed concern with PAs being omitted from §509.54(i)(14), which requires a patient's medical record to include evidence of the patient's evaluation by a physician or APRN before dismissal. TAPA stated that, like APRNs, PAs can evaluate patients before dismissal in a hospital setting and requested PAs be added to this paragraph.

Response: HHSC revises §509.54(i)(14) as suggested.

Comment: TMA expressed concern with §509.61(b) expanding the reporting obligations relating to illegal, unethical, or unprofessional conduct because the subsection does not make a distinction between this type of conduct and abuse, neglect, and exploitation. TMA stated current law requires illegal, unethical, or unprofessional conduct incidents to be reported when there is reasonable belief of such conduct by the facility or facility employee, and abuse, neglect, and exploitation incidents to be reported when there is a reasonable belief anyone perpetrated those acts. TMA recommended amending §509.61(b) to separate abuse, neglect, and exploitation reporting requirements from illegal, unethical, and unprofessional conduct reporting requirements.

Response: HHSC revises §509.61 as suggested by relocating the reporting requirements for illegal, unethical, and unprofessional conduct from subsection (b) to new subsection (c) and renumbering the subsequent subsections.

Comment: TAFEC expressed concern with §509.62(a)(3) requiring facilities to report to HHSC emergency patient transfers from an FEMC facility to a hospital. TAFEC stated since FEMC facilities are designated to provide emergency care, patients who present at an FEMC facility are already undergoing an emergency. TAFEC further stated facilities often transfer patients to hospitals and such transfers are not an "indication that something has gone wrong." TAFEC noted this reporting requirement would be burdensome for facilities and would not convey much useful information to HHSC. TAFEC requested HHSC either not adopt the proposed changes to §509.62 or amend this section to require monthly emergency transfer reports or more narrowly define the term "emergency transfer" to only include transfers due to a new condition, injury, or other incident which occurred at the FEMC.

Response: HHSC revises §509.62(a)(3) to clarify a facility must only report to HHSC an emergency transfer of a patient to a hospital if the transfer occurs by ambulance.

Comment: TNA and TNP noted both §509.65 and the general and special hospital rule at 25 TAC §133.44 require a physician evaluation upon a patient's arrival to the hospital and before any transfer, but §509.65(b)(3) excludes the provisions at 25 TAC §133.44(c)(4) allowing an RN, PA, or other qualified medical personnel to assess and report the patient's condition to the physician for an initial evaluation or in place of an evaluation if the physician determines the evaluation would unnecessarily delay the transfer to the patient's detriment. TNA and TNP recommended amending §509.65(b)(3) to include the provisions in 25 TAC §133.44(c)(4).

Response: HHSC declines to revise §509.65(b)(3) because at least one licensed physician must be on-site at the FEMC facility during all hours of operation as required under §509.24(c)(7) and HSC §254.053(c).

Comment: TMA expressed concern with §509.81 prohibiting a facility from recording, listening to, or eavesdropping on interviews or discussions by HHSC staff and requiring a facility to inform HHSC of any cameras or other recording devices in operation during HHSC staff discussions. TMA noted this could be read as imposing a proactive duty on the facility to respond to HHSC's conduct. TMA proposed language requiring a facility to grant reasonable HHSC staff requests to turn off security cameras or other recording or listening devices during HHSC staff interviews with facility staff or patients or during internal discussions between HHSC staff. TMA also proposed language to require the facility to provide HHSC staff with space in the facility to conduct interviews or discussions without security cameras or other recording or listening devices present.

Response: HHSC revises §509.81 to state an FEMC facility shall not intentionally record, listen to, or eavesdrop on any HHSC internal discussions outside the presence of FEMC facility staff when HHSC has requested a private room or office or distanced themselves from FEMC facility staff. HHSC also revises the language to require the FEMC facility to obtain HHSC staff's written approval before beginning to record or listen to the discussion. HHSC also adds 509.81(c) to state an interview or conversation for which FEMC facility staff are permitted either by words or actions to be present does not constitute a violation of this rule.

Comment: TMA requested HHSC amend §509.82(d), §509.83(g), and §509.83(j) to include the phrase "unless prohibited by law" at the end of the sentence. TMA stated these subsections do not reflect access to certain information as being subject to additional confidentiality by law.

Response: HHSC revises §509.82(d), §509.83(g), and §509.83(j) as requested.

Comment: TMA expressed concern with the timing requirements in §509.83(a), which requires a facility to, at the time of the initial physician assessment, provide each patient and applicable consenter with a written statement identifying HHSC as the agency responsible for investigating complaints against the facility. Specifically, TMA stated requiring the facility to provide the notice "at this specific clinical juncture may be overly proscriptive and could interfere with treatment." TMA recommended removing "at the time of the initial physician assessment" from §509.83(a).

Response: HHSC revises §509.83(a) by changing "at the time of the initial physician assessment" to "upon initial triage."

Comment: TMA recommended HHSC replace the term "consenter" with "legally authorized representative" in §509.83(a) to increase consistency with Texas law and the rest of the proposed rules.

Response: HHSC revises §509.83(a) by replacing the term "consenter" with "legally authorized representative." HHSC also adds a definition for "legally authorized representative" at §509.2(17) and renumbers the rest of §509.2 accordingly.

Comment: TMA stated that the new rules narrow the information HHSC provides to a facility after an inspection or investigation. TMA cited repealed 25 TAC §131.81(e), which requires HHSC to provide the facility with: the specific nature of the inspection or investigation; any alleged violations of a specific statute or rule; the identity of any records that were duplicated; the specific nature of any finding regarding an alleged violation or deficiency; the severity of a deficiency, if a deficiency is alleged; and a statement indicating no deficiencies were found when HHSC does not identify any deficiencies. TMA requested HHSC amend the new rules to require HHSC to provide the same extent of information during the exit conference as required under repealed 25 TAC §131.81(e).

Response: HHSC declines to revise the rules. The rules at §509.82(j) and §509.83(l) require the HHSC representative to hold an exit conference with the facility representative at an inspection's or investigation's conclusion and inform the facility representative of any preliminary inspection or investigation findings, which is consistent with current practice.

Comment: TMA stated §509.84(b)(2) shortens the required timeframe in which a facility must return a plan of correction to HHSC after receiving a statement of deficiencies under §509.84(b)(2). TMA stated the current rule allows for 10 business days and the new rule is 10 calendar days.

Response: HHSC declines to revise §509.84(b)(2). The timeframe in repealed 25 TAC §131.81 refers to "working days," which is unclear because licensed FEMC facilities are required by HSC 254.051(e) to be open 24 hours a day, seven days a week. Therefore, HHSC clarified the timeframes in this chapter by using the more commonly used terms "calendar" and "business" day.

Comment: TMA expressed concern with §509.101(c) not identifying FEMC facility licensees and applicants when listing the acts and omissions that may result in enforcement actions. TMA stated this language suggests broad enforcement authority under the proposed new chapter for HHSC to deny, suspend, or revoke a license or impose an administrative penalty on any person who fails to comply with any law applicable to that person. TMA also noted the chapter does not define the term "license," so the term is not inherently limited to an FEMC facility license. TMA also noted repealed 25 TAC §131.101 uses the terms "licensee or applicant," and requested that HHSC amend §509.101(c) to include the defined terms "licensee" and "applicant" in the subsection.

Response: HHSC declines to revise §509.101(c) because extra clarification is unnecessary as this chapter governs FEMC facility licenses. Therefore, it is clear §509.101(c) applies only to FEMC facility licensees and applicants for FEMC facility licensure.

Comment: TAFEC expressed its appreciation for §509.101(d) requiring HHSC to provide notice to FEMC facilities before denying, suspending, or revoking a license, or imposing an administrative penalty and providing the FEMC facility the opportunity to request a hearing.

Response: HHSC acknowledges this comment.

Comment: TAFEC requested that HHSC amend §509.108 to retain the administrative penalty limitations in repealed 25 TAC §131.108(c), which limits the total administrative penalty amount assessed for a multi-day violation at $5,000. TAFEC further recommended HHSC exceed the administrative penalty limitation only after obtaining evidence of "actual serious patient harm." TAFEC noted the potential for penalties to exceed $5,000 would be an "onerous burden" for FEMC facility operators.

Response: HHSC declines to revise §509.108 because the rule is consistent with HHSC's authority under HSC §254.205 to impose a penalty of up to $1,000 for each violation. Specifically, HSC §254.205(c) clarifies HHSC may consider each day of a continuing violation as a separate violation for the purposes of imposing an administrative penalty.

HHSC made the following edits to provide clarity, improve readability, and ensure consistency with HHSC rulemaking guidelines.

HHSC amended §509.24(k) to replace "HHSC will withdraw the application" with "HHSC will consider the application to be withdrawn" to increase clarity regarding how an application's status changes if an applicant does not complete all requirements within six months.

HHSC amended §509.83(l) to clarify that HHSC holds an exit conference with a facility representative.

SUBCHAPTER A. GENERAL PROVISIONS

26 TAC §509.1, §509.2

STATUTORY AUTHORITY

The new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and HSC §254.101, which authorizes HHSC to adopt rules regarding FEMC facilities.

§509.2.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Act--Texas Health and Safety Code Chapter 254, titled Freestanding Emergency Medical Care Facilities.

(2) Action plan--A written document that includes specific measures to correct identified problems or areas of concern; identifies strategies for implementing system improvements; and includes outcome measures to indicate the effectiveness of system improvements in reducing, controlling, or eliminating identified problem areas.

(3) Administrator--A person who is a physician, is a registered nurse, has a baccalaureate or postgraduate degree in administration or a health-related field, or has one year of administrative experience in a health-care setting.

(4) Advanced practice registered nurse (APRN)--A registered nurse authorized by the Texas Board of Nursing to practice as an advanced practice registered nurse in Texas. The term includes a nurse practitioner, nurse midwife, nurse anesthetist, and clinical nurse specialist. The term is synonymous with "advanced nurse practitioner."

(5) Adverse event--An event that results in unintended harm to the patient by an act of commission or omission rather than by the underlying disease or condition of the patient.

(6) Applicant--A person who seeks a freestanding emergency medical care facility license from the Texas Health and Human Services Commission (HHSC) and who is legally responsible for operation of the freestanding emergency medical care facility, whether by lease or ownership.

(7) Certified registered nurse anesthetist (CRNA)--A registered nurse who has current certification from the Council on Certification of Nurse Anesthetists and is currently authorized to practice as an advanced practice registered nurse by the Texas Board of Nursing.

(8) Change of ownership--Change in the person legally responsible for operation of the facility, whether by lease or by ownership.

(9) Designated provider--A provider of health care services selected by a health maintenance organization, a self-insured business corporation, a beneficial society, the Veterans Administration, TRICARE, a business corporation, an employee organization, a county, a public hospital, a hospital district, or any other entity to provide health care services to a patient with whom the entity has a contractual, statutory, or regulatory relationship that creates an obligation for the entity to provide the services to the patient.

(10) Disposal--Discharge, deposit, injection, dumping, spilling, leaking, or placing any solid waste or hazardous waste (containerized or uncontainerized) into or on any land or water so that solid waste or hazardous waste, or any constituent thereof, may enter the environment or be emitted into the air or discharge into any waters, including groundwaters.

(11) Emergency care--Health care services provided in a freestanding emergency medical care facility to evaluate and stabilize medical conditions of a recent onset and severity, including severe pain, that would lead a prudent layperson possessing an average knowledge of medicine and health to believe that the person's condition, sickness, or injury is of such a nature that failure to get immediate medical care could result in:

(A) placing the person's health in serious jeopardy;

(B) serious impairment to bodily functions;

(C) serious dysfunction of a bodily organ or part;

(D) serious disfigurement; or

(E) in the case of a pregnant woman, serious jeopardy to the health of the woman or fetus.

(12) Facility--A freestanding emergency medical care facility.

(13) Freestanding emergency medical care facility--A facility that is structurally separate and distinct from a hospital and which receives an individual and provides emergency care as defined in this section.

(14) Freestanding emergency medical care facility administration--The administrative body of a freestanding emergency medical care facility headed by an individual who has the authority to represent the facility and who is responsible for operation of the facility according to the policies and procedures of the facility's governing body.

(15) Governing body--The governing authority of a freestanding emergency medical care facility that is responsible for a facility's organization, management, control, and operation, including appointment of the medical staff; and includes the owner or partners for a freestanding emergency medical care facility owned or operated by an individual or partners or corporation.

(16) HHSC--Texas Health and Human Services Commission.

(17) Legally authorized representative (LAR)--Means:

(A) a parent or legal guardian if the patient is a minor;

(B) a legal guardian if the patient has been adjudicated incapacitated to manage the patient's personal affairs;

(C) an agent of the patient authorized under a medical power of attorney;

(D) an attorney ad litem appointed for the patient;

(E) a person authorized to consent to medical treatment on behalf of the patient under Texas Health and Safety Code Chapter 313;

(F) a guardian ad litem appointed for the patient;

(G) a personal representative or heir of the patient, as defined by Texas Estates Code Chapter 22, if the patient is deceased;

(H) an attorney retained by the patient or by the patient's legally authorized representative; or

(I) a person exercising a power granted to the person in the person's capacity as an attorney-in-fact or agent of the patient by a statutory durable power of attorney that is signed by the patient as principal.

(18) Licensed vocational nurse (LVN)--A person who is currently licensed by the Texas Board of Nursing as a licensed vocational nurse.

(19) Licensee--The person or governmental unit named in the application for issuance of a facility license.

(20) Medical director--A physician who is board certified or board eligible in emergency medicine, or board certified in primary care with a minimum of two years of emergency care experience.

(21) Medical staff--A physician or group of physicians, podiatrist or group of podiatrists, and dentist or group of dentists who by action of the governing body of a facility are privileged to work in and use the facility.

(22) Owner--One of the following persons or governmental unit that will hold, or does hold, a license issued under the Act in the person's name or the person's assumed name:

(A) a corporation;

(B) a governmental unit;

(C) a limited liability company;

(D) an individual;

(E) a partnership, if a partnership name is stated in a written partnership agreement, or an assumed name certificate;

(F) all partners in a partnership if a partnership name is not stated in a written partnership agreement, or an assumed name certificate; or

(G) all co-owners under any other business arrangement.

(23) Patient--An individual who presents for diagnosis or treatment.

(24) Person--An individual, firm, partnership, corporation, association, or joint stock company, including a receiver, trustee, assignee, or other similar representative of such an entity.

(25) Physician--An individual licensed by the Texas Medical Board and authorized to practice medicine in the state of Texas.

(26) Physician assistant--An individual licensed as a physician assistant by the Texas State Board of Physician Assistant Examiners.

(27) Practitioner--A health care professional licensed in the state of Texas, other than a physician, podiatrist, or dentist. A practitioner shall practice in a manner consistent with their underlying practice act.

(28) Prelicensure conference--A conference held between HHSC staff and the applicant or the applicant's representative to review licensure rules and survey documents and provide consultation before the on-site licensure inspection.

(29) Premises--A building where patients receive emergency services from a freestanding emergency medical care facility.

(30) Quality assessment and performance improvement (QAPI)--An ongoing program that measures, analyzes, and tracks quality indicators related to improving health outcomes and patient care emphasizing a multidisciplinary approach. The program implements improvement plans and evaluates the implementation until resolution is achieved.

(31) Registered nurse (RN)--An individual who is currently licensed by the Texas Board of Nursing as a registered nurse.

(32) Sexual assault survivor--An individual who is a victim of a sexual assault, regardless of whether a report is made, or a conviction is obtained in the incident.

(33) Stabilize--To provide necessary medical treatment of an emergency medical condition to ensure, within reasonable medical probability, that the condition is not likely to deteriorate materially from or during the transfer of the individual from a facility.

(34) Transfer--Movement (including the discharge) of an individual outside a facility at the direction of and after personal examination and evaluation by the facility physician. Transfer does not include movement outside a facility of an individual who has been declared dead or who leaves the facility against the advice of a physician.

(35) Transfer agreement--A referral, transmission, or admission agreement with a hospital.

(36) Universal precautions--Procedures for disinfecting and sterilizing reusable medical devices and appropriate use of infection control, including hand washing, use of protective barriers, and use and disposal of needles and other sharp instruments, as those procedures are defined by the Centers for Disease Control and Prevention (CDC) of the United States Department of Health and Human Services. This term includes standard precautions as defined by CDC, which are designed to reduce the risk of transmission of bloodborne and other pathogens in healthcare facilities.

(37) Violation--Failure to comply with the Act, another statute relating to the licensure or operation of a freestanding emergency medical care facility, a rule or standard, or an order issued by the executive commissioner of HHSC or the executive commissioner's designee, adopted or enforced under the Act.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 14, 2023.

TRD-202304233

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: December 4, 2023

Proposal publication date: July 14, 2023

For further information, please call: (512) 834-4591

26 TAC §§509.21 - 509.30

STATUTORY AUTHORITY

The new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and HSC §254.101, which authorizes HHSC to adopt rules regarding FEMC facilities.

§509.24.Application and Issuance of Initial License.

(a) All first-time applications for licensing are applications for an initial license, including applications from unlicensed operational facilities and licensed facilities for which a change of ownership or relocation is anticipated.

(b) The applicant shall submit the completed application, the information required in subsection (d) of this section, and the nonrefundable license fee to the Texas Health and Human Services Commission (HHSC) 90 days before the projected opening date of the facility.

(c) The applicant shall disclose to HHSC, if applicable:

(1) the name, address, and social security number of the owner or sole proprietor, if the owner of the facility is a sole proprietor;

(2) the name, address, and social security number of each general partner who is an individual, if the facility is a partnership;

(3) the name, address, and social security number of any individual who has an ownership interest of more than 25 percent in the corporation, if the facility is a corporation;

(4) the name, medical license number, and medical license expiration date of any physician licensed by the Texas Medical Board who has a financial interest in the facility or in any entity that has an ownership interest in the facility;

(5) the name, medical license number, and medical license expiration date of the medical chief of staff;

(6) the name, nursing license number, and nursing license expiration date of the director of nursing;

(7) affirmation that at least one physician licensed in the state of Texas and at least one registered nurse licensed in the state of Texas will be on site during all hours of operation;

(8) information concerning the applicant and the applicant's affiliates and managers, as applicable:

(A) denial, suspension, probation, or revocation of a facility license in any state or any other enforcement action, such as court civil or criminal action in any state;

(B) surrendering a license before expiration of the license or allowing a license to expire in lieu of HHSC proceeding with enforcement action;

(C) federal or state (any state) criminal felony arrests or convictions;

(D) Medicare or Medicaid sanctions or penalties relating to operation of a health care facility or home and community support services agency;

(E) operation of a health care facility or home and community support services agency that has been decertified or terminated from participation in any state under Medicare or Medicaid; or

(F) debarment, exclusion, or contract cancellation in any state from Medicare or Medicaid;

(9) for the two-year period preceding the application date, information concerning the applicant and the applicant's affiliates and managers, as applicable:

(A) federal or state (any state) criminal misdemeanor arrests or convictions;

(B) federal, state (any state), or local tax liens;

(C) unsatisfied final judgments;

(D) eviction involving any property or space used as a health care facility in any state;

(E) injunctive orders from any court; or

(F) unresolved final federal or state (any state) Medicare or Medicaid audit exceptions;

(10) the number of emergency treatment stations;

(11) a copy of the facility's patient transfer policy and procedure for the immediate transfer to a hospital of patients requiring emergency care beyond the capabilities of the facility developed in accordance with §509.65 of this chapter (relating to Patient Transfer Policy) and signed by the chairman and the secretary of the governing body that attests the date the policy was adopted by the governing body and its effective date;

(12) a copy of the facility's memorandum of transfer form, which contains at a minimum the information described in §509.65 of this chapter;

(13) a copy of a written agreement the facility has with a hospital, which provides for the prompt transfer to and the admission by the hospital of any patient when services are needed but are unavailable or beyond the capabilities of the facility in accordance with §509.66 of this chapter (relating to Patient Transfer Agreements); and

(14) a copy of a passing fire inspection report indicating approval by the local fire authority in whose jurisdiction the facility is based that is dated no earlier than one year before the opening date of the facility.

(d) The address provided on the application shall be the physical location at which the facility is or will be operating.

(e) Upon receipt of the application, HHSC shall review the application to determine whether it is complete. If HHSC determines that the application is not complete, HHSC shall notify the facility in writing.

(f) The applicant or the applicant's representative shall attend a prelicensure conference at the office designated by HHSC. HHSC may waive the prelicensure conference requirement.

(g) After the facility has participated in a prelicensure conference or the prelicensure conference has been waived at HHSC's discretion, the facility has received an approved architectural inspection conducted by HHSC, and HHSC has determined the facility is in compliance with subsections (c) - (e) of this section, HHSC shall issue a license to the facility to provide freestanding emergency medical care services in accordance with this chapter.

(h) The license shall be effective on the date the facility is determined to be in compliance with subsections (c) - (g) of this section.

(i) The license expires on the last day of the 24th month after issuance.

(j) If an applicant decides not to continue the application process for a license, the applicant may withdraw its application. The applicant shall submit to HHSC a written request to withdraw. HHSC shall acknowledge receipt of the request to withdraw.

(k) If the applicant does not complete all requirements of subsections (b) - (d) and (f) of this section within six months after the date HHSC's health care facility licensing unit receives confirmation that HHSC received the application and payment, HHSC will consider the application to be withdrawn. Any fee paid for a withdrawn application is nonrefundable, as indicated by §509.30(d) of this subchapter (relating to Fees).

(l) During the initial licensing period, HHSC shall conduct an inspection of the facility to ascertain compliance with the provisions of the Act and this chapter.

(1) The facility shall request HHSC conduct an on-site inspection after the facility provides services to at least one patient.

(2) The facility shall be providing services at the time of the inspection.

§509.26.Inactive Status and Closure.

(a) A facility that is not staffed and open for more than five calendar days shall inform the Texas Health and Human Services Commission (HHSC), and HHSC will change the status of the facility license to inactive.

(1) To be eligible for inactive status, a facility must be in good standing with no pending enforcement action or investigation.

(2) The licensee is responsible for any license renewal requirements or fees, and for proper maintenance of patient records, while the license is inactive.

(3) A license may not remain inactive for more than 60 calendar days.

(4) To reactivate the license, the facility must inform HHSC no later than 60 calendar days after the facility stopped providing services under its license.

(5) A facility that does not reactivate its license by the 60th calendar day after it stopped providing services has constructively surrendered its license, and HHSC will consider the facility closed.

(b) A facility shall notify HHSC in writing before closure of the facility.

(1) The facility shall dispose of medical records in accordance with §509.54 of this chapter (relating to Medical Records).

(2) The facility shall appropriately discharge or transfer all patients before the facility closes.

(3) A license becomes invalid when a facility closes. The facility shall return the licensure certificate to HHSC not later than 30 calendar days after the facility closes.

(c) A facility that closes, or for which a license issued under this chapter expires or is suspended or revoked, shall immediately remove or cause to be removed any signs within view of the general public indicating that the facility is in operation as required under Texas Health and Safety Code §254.158 (relating to Removal of Signs).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 14, 2023.

TRD-202304234

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: December 4, 2023

Proposal publication date: July 14, 2023

For further information, please call: (512) 834-4591

26 TAC §§509.41 - 509.66

STATUTORY AUTHORITY

The new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and HSC §254.101, which authorizes HHSC to adopt rules regarding FEMC facilities.

§509.48.Anesthesia.

(a) If a facility furnishes anesthesia services, the facility shall provide these services in a well-organized manner under the medical direction of a physician approved by the governing body and qualified in accordance with Texas Occupations Code Title 3, Subtitle B (relating to Physicians) and Texas Occupations Code Chapter 301 (relating to Nurses), as appropriate.

(b) A facility that furnishes anesthesia services shall comply with Texas Occupations Code Chapter 162, Subchapter C (relating to Anesthesia in Outpatient Setting), unless the facility is exempt under Texas Occupations Code §162.103 (relating to Applicability).

(c) A facility is responsible for and shall document all anesthesia services administered in the facility.

(d) Anesthesia services provided in the facility shall be limited to those that are recommended by the medical staff and approved by the governing body, which may include the following.

(1) Topical anesthesia--An anesthetic agent applied directly or by spray to the skin or mucous membranes, intended to produce transient and reversible loss of sensation to the circumscribed area.

(2) Local anesthesia--Administering an agent that produces a transient and reversible loss of sensation to a circumscribed portion of the body.

(3) Regional anesthesia--Anesthetic injected around a single nerve, a network of nerves, or vein that serves the area involved in a surgical procedure to block pain.

(4) Minimal sedation (anxiolysis)--A drug-induced state during which patients respond normally to oral commands. Although cognitive function and coordination may be impaired, ventilatory and cardiovascular functions are unaffected.

(5) Moderate sedation or analgesia ("conscious sedation")--A drug-induced depression of consciousness during which patients respond purposefully to oral commands, either alone or accompanied by light tactile stimulation. No interventions are required to maintain a patent airway, and spontaneous ventilation is adequate. Cardiovascular function is usually maintained. (Reflex withdrawal from a painful stimulus is not considered a purposeful response.)

(6) Deep sedation or analgesia--A drug-induced depression of consciousness during which patients cannot be easily aroused but respond purposefully following repeated or painful stimulation. The ability to independently maintain ventilatory function may be impaired. Patients may require assistance in maintaining a patent airway, and spontaneous ventilation may be inadequate. Cardiovascular function is usually maintained. (Reflex withdrawal from a painful stimulus is not considered a purposeful response.)

(e) The medical staff shall develop written policies and practice guidelines for the anesthesia service, which the governing body shall adopt, implement, and enforce. The policies and guidelines shall include consideration of the applicable practice standards and guidelines of the American Society of Anesthesiologists, the American Association of Nurse Anesthetists, and the licensing rules and standards applicable to those categories of licensed professionals qualified to administer anesthesia.

(f) Only personnel who have been approved by the facility to provide anesthesia services shall administer anesthesia. All approvals or delegations of anesthesia services as authorized by law shall be documented and include the training, experience, and qualifications of the person who provided the service. On the order of a physician, podiatrist, dentist, or other practitioner practicing within the scope of their license and education, a qualified registered nurse (RN) who is not a certified registered nurse anesthetist (CRNA) may administer topical anesthesia, local anesthesia, minimal sedation and moderate sedation, in accordance with all applicable rules, polices, directives, and guidelines issued by the Texas Board of Nursing. When an RN who is not a CRNA administers sedation, as permitted in this paragraph, the facility shall:

(1) verify the RN has the requisite training, education, and experience;

(2) maintain documentation to support that the RN has demonstrated competency in administering sedation;

(3) with input from the facility's qualified anesthesia providers, develop, implement, and enforce detailed written policies and procedures to guide the RN; and

(4) ensure that, when administering sedation during a procedure, the RN has no other duties except to monitor the patient.

(g) Anesthesia shall not be administered unless the physician has evaluated the patient immediately before the procedure to assess the risk of the anesthesia and of the procedure to be performed.

(h) A patient who has received anesthesia shall be evaluated for proper anesthesia recovery by the physician, or the person administering the anesthesia, before discharge using criteria approved by the medical staff.

(i) A patient shall be evaluated immediately before leaving the facility by a physician, the person administering the anesthesia, or an RN acting in accordance with physician's orders and written policies, procedures, and criteria developed by the medical staff.

(j) Emergency equipment and supplies appropriate for the type of anesthesia services provided shall always be maintained and accessible to staff.

(k) All facilities shall provide at least the following functioning equipment and supplies:

(1) suctioning equipment, including a source of suction and suction catheters in appropriate sizes for the population being served;

(2) a source of compressed oxygen;

(3) basic airway management equipment, including oral and nasal airways, face masks, and self-inflating breathing bag valve set;

(4) blood pressure monitoring equipment; and

(5) emergency medications specified by the medical staff and appropriate to the type of procedures and anesthesia services provided by the facility.

(l) In addition to the equipment and supplies required under subsection (k) of this section, a facility that provides moderate sedation/analgesia, deep sedation/analgesia, or regional analgesia shall provide:

(1) intravenous equipment, including catheters, tubing, fluids, dressing supplies, and appropriately sized needles and syringes;

(2) advanced airway management equipment, including laryngoscopes and an assortment of blades, endotracheal tubes, and stylets in appropriate sizes for the population being served;

(3) a mechanism for monitoring blood oxygenation, such as pulse oximetry;

(4) electrocardiographic monitoring equipment;

(5) cardiac defibrillator; and

(6) pharmacologic antagonists, as specified by the medical staff and appropriate to the type of anesthesia services provided.

§509.51.Radiology.

(a) The facility shall adopt, implement, and enforce policies and procedures for emergency radiological procedures.

(b) The facility shall provide radiological services that are immediately available on the premises to meet the emergency needs of patients and to adequately support the facility's clinical capabilities, including plain film X-ray.

(c) The facility shall provide computed tomography (CT) scan services and ultrasound services that are immediately available on the premises.

(d) A physician or other practitioner within the scope of their license and education shall read, date, sign, and authenticate all examination reports.

(e) The radiology department shall meet all applicable federal, state, and local laws, codes, standards, rules, regulations, and ordinances.

(f) Procedure manuals shall include procedures for all examinations performed, infection control in the facility, treatment and examination rooms, personnel dress code, and equipment cleaning.

(g) Policies shall address the quality aspects of radiology services, including:

(1) performing radiology services only on the written order of a physician, podiatrist, dentist, or other practitioner, who is practicing within the scope of their license and education, (such orders shall be accompanied by a concise statement of the reason for the examination); and

(2) limiting the use of any radioactive sources in the facility to physicians who have been granted privileges for such use based on their training, experience, and current competence.

(h) Policies shall address safety, including:

(1) regulating use, removal, handling, and storage of any radioactive material that is required to be licensed by the Texas Department of State Health Services Radiation Control Program;

(2) precautions against electrical, mechanical, and radiation hazards;

(3) proper shielding where radiation sources are used;

(4) acceptable monitoring devices for all personnel who might be exposed to radiation that shall be worn by such personnel in any area with a radiation hazard;

(5) maintenance of radiation exposure records on personnel; and

(6) authenticated dated reports of all examinations performed added to the patient's medical record.

§509.52.Respiratory Services.

(a) The facility shall meet the respiratory needs of the patients in accordance with acceptable standards of practice.

(b) The facility shall adopt, implement, and enforce policies and procedures that describe the provision of respiratory care services in the facility.

(c) The organization of the respiratory care services shall be appropriate to the scope and complexity of the services offered.

(d) Personnel qualified to perform specific procedures and the amount of supervision required for personnel to carry out specific procedures shall be designated in writing.

(e) If blood gases or other clinical laboratory tests are performed, staff shall comply with Clinical Laboratory Improvement Amendments of 1988 in accordance with the requirements specified in Code of Federal Regulations, Title 42, Part 493 (relating to Laboratory Services).

(f) Respiratory services shall be provided only on, and in accordance with, the orders of a physician, or other practitioner practicing within the scope of their license.

§509.53.Surgical Services within the Scope of the Practice of Emergency Medicine.

(a) Surgical procedures performed in the facility shall be limited to those emergency procedures that are approved by the governing body on the recommendation of medical staff.

(b) Adequate supervision of surgical procedures conducted in the facility shall be a responsibility of the governing body, recommended by medical staff, and provided by appropriate medical staff.

(c) Surgical procedures shall be performed only by physicians, podiatrists, dentists, or other practitioners, who are practicing within the scope of their license and education, who are licensed to perform surgical procedures in Texas and who have been granted privileges to perform those procedures by the governing body, on the recommendation of the medical staff, and after medical review of the physician's, podiatrist's, dentist's, or practitioner's documented education, training, experience, and current competence.

(d) Surgical procedures to be performed in the facility shall be reviewed periodically as part of the peer review portion of the facility's quality assessment and performance improvement program.

(e)An appropriate history, physical examination, and per tinent preoperative diagnostic studies shall be incorporated into the patient's medical record before a surgical procedure.

(f) Unless otherwise provided by law, the necessity or appropriateness of the proposed surgical procedure, as well as any available alternative treatment techniques, shall be discussed with the patient, or if applicable, with the patient's legal representative before the surgical procedure.

(g) Licensed nurses and other personnel assisting in the provision of surgical services shall be appropriately trained and supervised and available in sufficient numbers for the surgical care provided.

(h) Each treatment or examination room shall be designed and equipped so that the types of surgical procedures conducted can be performed in a manner that protects the lives and ensures the physical safety of all persons in the area.

(1) If flammable agents are present in a treatment or examination room, the room shall be constructed and equipped in compliance with standards established by the National Fire Protection Association (NFPA 99, Annex 2, Flammable Anesthetizing Locations, 1999) and with applicable state and local fire codes.

(2) If nonflammable agents are present in a treatment or examination room, the room shall be constructed and equipped in compliance with standards established by the National Fire Protection Association (NFPA 99, Chapters 4 and 8, 1999) and with applicable state and local fire codes.

(i) With the exception of those tissues exempted by the governing body after medical review, tissues removed shall be examined by a pathologist, whose signed or authenticated report of the examination shall be made a part of the patient's medical record.

(j) A description of the findings and techniques of surgical procedures shall be accurately and completely incorporated into the patient's medical record immediately after the procedure by the physician, podiatrist, dentist, or other practitioner, acting within the scope of their license and education, who performed the procedure. If the description is dictated, an accurate written summary shall be immediately available to the physicians and practitioners providing patient care and shall become a part of the patient's medical record.

(k) The facility shall provide adequate space, equipment, and personnel to ensure a safe environment for treating patients during surgical procedures, including adequate safeguards to protect the patient from cross infection.

(1) The facility shall isolate patients with communicable diseases.

(2) Acceptable aseptic techniques shall be used by all persons.

(3) Suitable equipment for rapid and routine sterilization shall be available.

(4) The facility shall implement environmental controls that ensure a safe and sanitary environment.

(l) Written policies and procedures for decontaminating, disinfecting, sterilizing, and storing sterile supplies shall be adopted, implemented, and enforced as described in §509.57 of this subchapter (relating to Sterilization).

(m) Emergency power adequate for the type of surgical procedures performed shall be available.

(n) Periodic calibration and preventive maintenance of all equipment shall be provided in accordance with manufacturer's guidelines.

(o) Unless otherwise provided by law, the informed consent of the patient or, if applicable, of the patient's legal representative shall be obtained before a surgical procedure is performed.

(p) The facility shall establish a written procedure for observing and caring for the patient during and after surgical procedures.

(q) The facility shall establish written protocols for instructing patients in self-care after surgical procedures, including written instructions to be given to patients who receive conscious sedation or regional anesthesia.

(r) Patients who have received anesthesia, other than solely topical anesthesia, shall be allowed to leave the facility only in the company of a responsible adult, unless the physician, physician assistant, or an advanced practice registered nurse writes an order that the patient may leave without the company of a responsible adult.

(s) The facility shall develop an effective written procedure for the immediately transferring to a hospital patients requiring emergency care beyond the capabilities of the facility. The facility shall have a written transfer agreement with a hospital as set forth in §509.65 of this subchapter (relating to Patient Transfer Policy).

§509.54.Medical Records.

(a) The facility shall develop and maintain a system for collecting, processing, maintaining, storing, retrieving, authenticating, and distributing patient medical records.

(b) The facility shall establish an individual medical record for each patient.

(c) All clinical information relevant to a patient shall be readily available to physicians or practitioners involved in the care of that patient.

(d) Except when otherwise required or permitted by law, any record that contains clinical, social, financial, or other data on a patient shall be strictly confidential and shall be protected from loss, tampering, alteration, improper destruction, and unauthorized or inadvertent disclosure.

(e) The facility shall designate a person to be in charge of medical records. The person's responsibilities include:

(1) confidential, secure, and safe storage of medical records;

(2) timely retrieval of individual medical records on request;

(3) specific identification of each patient's medical record;

(4) supervision of collecting, processing, maintaining, storing, retrieving, and distributing medical records; and

(5) maintenance of a predetermined organized medical record format.

(f) The facility shall retain medical records in their original or legally reproduced form for a period of at least 10 years. A legally reproduced form is a medical record retained in hard copy, microform (microfilm or microfiche), or electronic medium. The facility shall retain films, scans, and other image records for a period of at least five years.

(1) The facility shall not destroy medical records that relate to any matter that is involved in litigation if the facility knows the litigation has not been finally resolved.

(2) For medical records of a patient less than 18 years of age at the time of last treatment, the facility may dispose of those medical records after the date of the patient's 20th birthday or after the 10th anniversary of the date on which the patient was last treated, whichever date is later, unless the records are related to a matter that is involved in litigation that the facility knows has not been finally resolved.

(3) If a facility plans to close, the facility shall arrange for disposition of the medical records in accordance with applicable law. The facility shall notify the Texas Health and Human Services Commission at the time of closure of the disposition of the medical records, including where the medical records will be stored and the name, address, and phone number of the custodian of the records.

(g) Except when otherwise required by law, the content and format of medical records, including the sequence of information, shall be uniform.

(h) Medical records shall be available to authorized physicians and practitioners any time the facility is open to patients.

(i) The facility shall include in patients' medical records:

(1) complete patient identification;

(2) date, time, and means of arrival and discharge;

(3) allergies and untoward reactions to drugs recorded in a prominent and uniform location;

(4) all medications administered and the drug dose, route of administration, frequency of administration, and quantity of all drugs administered or dispensed to the patient by the facility and entered on the patient's medical record;

(5) significant medical history of illness and results of physical examination, including the patient's vital signs;

(6) a description of any care given to the patient before the patient's arrival at the facility;

(7) a complete detailed description of treatment and procedures performed in the facility;

(8) clinical observations including the results of treatment, procedures, and tests;

(9) diagnostic impression;

(10) a pre-anesthesia evaluation by an individual qualified to administer anesthesia when administered;

(11) a pathology report on all tissues removed, except those exempted by the governing body;

(12) documentation of a properly executed informed consent when necessary;

(13) for patients with a length of stay greater than eight hours, an evaluation of nutritional needs and evidence of how identified needs were met;

(14) evidence of patient evaluation by a physician, physician assistant, or advanced practice registered nurse before dismissal; and

(15) conclusion at the termination of evaluation or treatment, including final disposition, the patient's condition on discharge or transfer, and any instructions given to the patient or family for follow-up care.

(j) Medical advice given to a patient by telephone shall be entered in the patient's medical record and dated, timed, and authenticated.

(k) Entries in medical records shall be legible, accurate, complete, dated, timed, and authenticated by the person responsible for providing or evaluating the service provided no later than 48 hours after discharge.

(l) To ensure continuity of care, medical records shall be transferred to the physician, practitioner, or facility to whom the patient was referred, if applicable.

§509.61.Abuse and Neglect.

(a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Abuse--The negligent or willful infliction of injury, unreasonable confinement, intimidation, or cruel punishment, including pain or sexual abuse, that adversely affects the physical, mental, or emotional welfare of a patient.

(2) Exploitation--The use of a patient's resources for monetary or personal benefit, profit, or gain without the informed consent of the patient.

(3) Illegal conduct--Conduct prohibited by law.

(4) Neglect--The failure to provide goods or services that are necessary to avoid adversely affecting the physical, mental, or emotional welfare of a patient.

(5) Unethical conduct--Conduct prohibited by the ethical standards adopted by state or national professional organizations for their respective professions or by rules established by the state licensing agency for the respective profession.

(6) Unprofessional conduct--Conduct prohibited under rules adopted by the state licensing agency for the respective profession.

(b) The facility or a person associated with a facility, including an employee, volunteer, health care professional, or other person, shall immediately report all incidents of abuse, neglect, or exploitation to the Texas Health and Human Services Commission (HHSC) and any other appropriate regulatory agency. This includes any information that would reasonably cause a person to believe that an incident of abuse, neglect, or exploitation has occurred, is occurring, or will occur.

(c) A person associated with a facility, including an employee, volunteer, health care professional, or other person, who reasonably believes or knows of information that would reasonably cause a person to believe the facility, a facility employee, or a health care professional associated with the facility, has, is, or will be engaged in conduct that is or might be illegal, unprofessional, or unethical and that relates to the operation of the facility shall report the information as soon as possible to HHSC or to the appropriate state health care regulatory agency.

(d) A facility shall prominently and conspicuously post for display a statement of the duty to report abuse, neglect, exploitation, illegal conduct, unethical conduct, or unprofessional conduct.

(1) The display shall be posted in a public area of the facility and shall be readily visible to patients, residents, volunteers, employees, and visitors.

(2) The statement shall be in English and in a second language as appropriate to the demographic makeup of the community served.

(3) The statement shall contain the contact information for HHSC Complaint and Incident Intake.

§509.62.Reporting Requirements.

(a) A facility shall report the following incidents to the Texas Health and Human Services Commission (HHSC):

(1) the death of a patient while under the care of the facility;

(2) a patient stay exceeding 23 hours; and

(3) 9-1-1 activation or the emergency transfer of a patient from the facility to a hospital by ambulance.

(b) Reports under subsection (a) of this section shall be on a form provided by HHSC. The report shall contain a written explanation of the incident and the name of the individual responsible. The report shall be submitted online or through a telephone call to HHSC Complaint and Incident Intake not later than the 10th business day after the incident.

(c) A facility shall report any abuse, theft, or diversion of controlled drugs in accordance with applicable federal and state laws and shall report the incident to the chief executive officer of the facility.

(d) A facility shall report occurrences of fires in the facility as specified under 25 TAC Chapter 131, Subchapter F (relating to Fire Prevention Safety Requirements).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 14, 2023.

TRD-202304236

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: December 4, 2023

Proposal publication date: July 14, 2023

For further information, please call: (512) 834-4591

26 TAC §§509.81 - 509.86

STATUTORY AUTHORITY

The new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and HSC §254.101, which authorizes HHSC to adopt rules regarding FEMC facilities.

§509.81.Integrity of Inspections and Investigations.

(a) In order to preserve the integrity of the Texas Health and Human Services Commission's (HHSC's) inspection and investigation process, a facility:

(1) shall not record, listen to, or eavesdrop on any HHSC interview with facility staff or patients that the facility staff knows HHSC intends to keep confidential as evidenced by HHSC taking reasonable measures to prevent from being overheard; or

(2) shall not record, listen to, or eavesdrop on any HHSC internal discussions outside the presence of facility staff when HHSC has requested a private room or office or distanced themselves from facility staff and the facility obtains HHSC' written approval before beginning to record or listen to the discussion.

(b) A facility shall inform HHSC when security cameras or other existing recording devices in the facility are in operation during any internal discussion by or among HHSC staff.

(c) When HHSC by words or actions permits facility staff to be present, an interview or conversation for which facility staff are present does not constitute a violation of this rule.

(d) This section does not prohibit an individual from recording an HHSC interview with the individual.

§509.82.Inspections.

(a) The Texas Health and Human Services Commission (HHSC) may conduct an unannounced, on-site inspection of a facility at any reasonable time, including when treatment services are provided, to inspect, investigate, or evaluate compliance with or prevent a violation of:

(1) any applicable statute or rule;

(2) a facility's plan of correction;

(3) an order or special order of the executive commissioner or the executive commissioner's designee;

(4) a court order granting injunctive relief; or

(5) for other purposes relating to regulation of the facility.

(b) An applicant or licensee, by applying for or holding a license, consents to entry and inspection of any of its facilities by HHSC.

(c) HHSC inspections to evaluate a facility's compliance may include:

(1) initial, change of ownership, or relocation inspections for the issuance of a new license;

(2) inspections related to changes in status, such as new construction or changes in services, designs, or bed numbers;

(3) routine inspections, which may be conducted without notice and at HHSC's discretion, or prior to renewal;

(4) follow-up on-site inspections, conducted to evaluate implementation of a plan of correction for previously cited deficiencies;

(5) inspections to determine if an unlicensed facility is offering or providing, or purporting to offer or provide, treatment; and

(6) entry in conjunction with any other federal, state, or local agency's entry.

(d) A facility shall cooperate with any HHSC inspection and shall permit HHSC to examine the facility's grounds, buildings, books, records, and other documents and information maintained by or on behalf of the facility, unless prohibited by law.

(e) A facility shall permit HHSC access to interview members of the governing body, personnel, and patients, including the opportunity to request a written statement.

(f) A facility shall permit HHSC to inspect and copy any requested information, unless prohibited by law. If it is necessary for HHSC to remove documents or other records from the facility, HHSC provides a written description of the information being removed and when it is expected to be returned. HHSC makes a reasonable effort, consistent with the circumstances, to return any records removed in a timely manner.

(g) HHSC shall maintain the confidentiality of facility records as applicable under state and federal law.

(h) Upon entry, HHSC holds an entrance conference with the facility's designated representative to explain the nature, scope, and estimated duration of the inspection.

(i) During the inspection, the HHSC representative gives the facility representative an opportunity to submit information and evidence relevant to matters of compliance being evaluated.

(j) When an inspection is complete, the HHSC representative holds an exit conference with the facility representative to inform the facility representative of any preliminary findings of the inspection, including possible health and safety concerns. The facility may provide any final documentation regarding compliance during the exit conference.

§509.83.Complaint Investigations.

(a) Upon initial triage, a facility shall provide each patient and applicable legally authorized representative with a written statement identifying the Texas Health and Human Services Commission (HHSC) as the agency responsible for investigating complaints against the facility.

(1) The statement shall inform persons that they may direct a complaint to HHSC Complaint and Incident Intake (CII) and include current CII contact information, as specified by HHSC.

(2) The facility shall prominently and conspicuously post this statement in patient common areas and in visitor's areas and waiting rooms so that it is readily visible to patients, employees, and visitors. The information shall be in English and in a second language appropriate to the demographic makeup of the community served.

(b) HHSC evaluates all complaints. A complaint must be submitted using HHSC's current CII contact information for that purpose, as described in subsection (a) of this section.

(c) HHSC documents, evaluates, and prioritizes complaints based on the seriousness of the alleged violation and the level of risk to patients, personnel, and the public.

(1) Allegations determined to be within HHSC's regulatory jurisdiction relating to freestanding emergency medical care facilities may be investigated under this chapter.

(2) HHSC may refer complaints outside HHSC's jurisdiction to an appropriate agency, as applicable.

(d) HHSC shall conduct investigations to evaluate a facility's compliance following a complaint of abuse, neglect, or exploitation; or a complaint related to the health and safety of patients.

(e) HHSC may conduct an unannounced, on-site investigation of a facility at any reasonable time, including when treatment services are provided, to inspect or investigate:

(1) a facility's compliance with any applicable statute or rule;

(2) a facility's plan of correction;

(3) a facility's compliance with an order of the executive commissioner or the executive commissioner's designee;

(4) a facility's compliance with a court order granting injunctive relief; or

(5) for other purposes relating to regulation of the facility.

(f) An applicant or licensee, by applying for or holding a license, consents to entry and investigation of any of its facilities by HHSC.

(g) A facility shall cooperate with any HHSC investigation and shall permit HHSC to examine the facility's grounds, buildings, books, records, and other documents and information maintained by, or on behalf of, the facility, unless prohibited by law.

(h) A facility shall permit HHSC access to interview members of the governing body, personnel, and patients, including the opportunity to request a written statement.

(i) HHSC shall maintain the confidentiality of facility records as applicable under state and federal law.

(j) A facility shall permit HHSC to inspect and copy any requested information, unless prohibited by law. If it is necessary for HHSC to remove documents or other records from the facility, HHSC provides a written description of the information being removed and when it is expected to be returned. HHSC makes a reasonable effort, consistent with the circumstances, to return any records removed in a timely manner.

(k) Upon entry, the HHSC representative holds an entrance conference with the facility's designated representative to explain the nature, scope, and estimated duration of the investigation.

(l) The HHSC representative holds an exit conference with the facility representative to inform the facility representative of any preliminary findings of the investigation. The facility may provide any final documentation regarding compliance during the exit conference.

(m) Once an investigation is complete, HHSC reviews the evidence from the investigation to evaluate whether there is a preponderance of evidence supporting the allegations contained in the complaint.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 14, 2023.

TRD-202304238

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: December 4, 2023

Proposal publication date: July 14, 2023

For further information, please call: (512) 834-4591

26 TAC §§509.101 - 509.108

STATUTORY AUTHORITY

The new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and HSC §254.101, which authorizes HHSC to adopt rules regarding FEMC facilities.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 14, 2023.

TRD-202304240

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: December 4, 2023

Proposal publication date: July 14, 2023

For further information, please call: (512) 834-4591

The Texas Health and Human Services Commission (HHSC) adopts amendments to §555.2, concerning Definitions, §555.11, concerning Application Requirements, §555.12, concerning Licensure Requirements, §555.13, concerning Internship Requirements, §555.18, concerning Examinations and Requirements to Take the Examinations, §555.32, concerning Provisional License, and §555.35, concerning Continuing Education Requirements for License Renewal. The sections are adopted without changes to the proposed text as published in the September 8, 2023, issue of the Texas Register (48 TexReg 4988). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amended rules clarify requirements and provide additional options for individuals to qualify for nursing facility administrator (NFA) licensure. The amendments update definitions and associated references for consistency with changes made by the National Association of Long-Term Care Administrator Boards (NAB) regarding both educational domains for testing and the company conducting the NAB examination. The amended rules also provide a greater degree of flexibility for the administrator-in-training (AIT) internship. Other non-substantive changes are for clarification.

The amendment to Subchapter A, General Information, §555.2 revises definitions for NFA rules, including the names and number of educational domains used by NAB, and to clarify that HHSC is responsible for NFA licensure in Texas and that NAB is the national authority on NFA licensure, credentialing, and regulation. Further, the amended rule removes extraneous language from the definition of the NFA advisory committee and updates the name of the company that administers the NAB licensure exam.

The amendments to Subchapter B, Requirements for Licensure, §§555.11, 555.12, 555.13, and 555.18 revises requirements for NFA licensure applications, offering additional options for licensure requirements, and providing increased flexibility for the AIT internship. The revised requirements for licensure applications include reducing the number of academic credits required for NFA candidates who hold a transcript with coursework in the updated NAB domains that is not reflected by the candidates' baccalaureate degree.

The additional option for individuals to qualify for NFA licensure requires the candidate to hold a baccalaureate degree with coursework in the NAB domains and have one year of experience as the administrator of record or assistant administration of record at a facility in another state. Increased flexibility for the AIT internship includes allowing the internship to be completed in a facility of any size, removing the requirement for the internship to be completed in a facility with a minimum of 60 beds. The amendment to §555.18 makes a minor editorial change and removes a reference to the name of the company that administers the NAB examination.

The amendment to Subchapter C, Licenses, §555.32 and §555.35 clarifies requirements for provisional NFA licenses, removing ambiguous phrases such as "substantially similar" in the context of licensing requirements in other states. The amended rules stipulate that if internship hours in another state do not meet the requirements in §555.13, the provisional licensee must complete the required internship hours under the supervision of an HHSC-licensed preceptor. The amended rules also make non-substantive edits to clarify that licensees must complete at least six hours of continuing education in ethics.

COMMENTS

The 31-day comment period ended October 9, 2023. During this period, HHSC received no public comments regarding the proposed rules.

SUBCHAPTER A. GENERAL INFORMATION

26 TAC §555.2

STATUTORY AUTHORITY

The amendment is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Human Resources Code §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program; and Texas Health and Safety Code §242.302, which grants HHSC the general authority to establish rules consistent with that subchapter, and directs HHSC to establish qualifications of applicants for licenses and renewal of licenses issued under that subchapter, as well as reasonable and necessary administration and implementation fees, and continuing education hours required to renew a license under that subchapter.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 16, 2023.

TRD-202304297

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: December 6, 2023

Proposal publication date: September 8, 2023

For further information, please call: (512) 438-3161

26 TAC §§555.11 - 555.13, 555.18

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Human Resources Code §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program; and Texas Health and Safety Code §242.302, which grants HHSC the general authority to establish rules consistent with that subchapter, and directs HHSC to establish qualifications of applicants for licenses and renewal of licenses issued under that subchapter, as well as reasonable and necessary administration and implementation fees, and continuing education hours required to renew a license under that subchapter.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 16, 2023.

TRD-202304298

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: December 6, 2023

Proposal publication date: September 8, 2023

For further information, please call: (512) 438-3161

26 TAC §555.32, §555.35

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Human Resources Code §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program; and Texas Health and Safety Code §242.302, which grants HHSC the general authority to establish rules consistent with that subchapter, and directs HHSC to establish qualifications of applicants for licenses and renewal of licenses issued under that subchapter, as well as reasonable and necessary administration and implementation fees, and continuing education hours required to renew a license under that subchapter.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 16, 2023.

TRD-202304299

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: December 6, 2023

Proposal publication date: September 8, 2023

For further information, please call: (512) 438-3161